In Re Complaint by FACULTY SENATE OF
THE COLLEGE OF ARTS AND SCIENCES OF THE UNIVERSITY OF ALABAMA Concerning
programming of Alabama Educational Commission Stations
FEDERAL
COMMUNICATIONS COMMISSION
25 F.C.C.2d 342
RELEASE-NUMBER: FCC 70-671
JUNE
24, 1970
OPINION:
[*342]
ALABAMA EDUCATIONAL TELEVISION COMMISSION, 2151 Highland Avenue,
Birmingham, Ala.
FACULTY SENATE, University of
Alabama, College of Arts and Sciences, University, Ala.
Mrs. JUDY AUSTIN, Post Office Box
3723, University, Ala.
GENTLEMEN AND
MRS. AUSTIN: The Commission has received a letter of complaint from the Faculty
Senate of the College of Arts and Sciences of the University of Alabama, a
petition signed by sixth persons at the University attached to a cover letter
from Judity Austin, a former employee of the Alabama Educational Television
Commission (hereinafter referred to as AETC) and more than 15 individual
letters complaining about the programming policies of Alabama educational
television stations since the AETC assumed control of the NET affiliation on
July 1, 1969. In addition, the
Commission has under consideration eight applications for renewal of license of
the noncommercial educational television stations in Alabama filed by the
licensee, AETC.
When the Commission
receives complaints of the general nature here involved, its usual practice is
to refer them to the licensee in order to afford the licensee an opportunity to
comment. The Austin and Faculty Senate
letters alleged that since the AETC assumed the NET affiliation from one of its
programming centers, the University of Alabama, certain Black oriented programs
were being systematically deleted from the schedule including such shows as
"Soul," "Black Journal," and "On Being Black" and
all Vietnam moratorium coverage. The
letters were forwarded to the licensee for comment. The licensee made the following comments on the letters: (1) the
AETC's six local programming centers are given priority over NET programs; (2)
it is the licensee's obligation to control the programming; (3) the NET
affiliation contract requires that its programs be carried in full; [*343]
(4) the programs named by the complainants contain "... lewd, vulgar,
obscene, profane or repulsive material..." which will not be presented by
the AETC; (5) the AETC assumed the network affiliation on July 1, 1969 to
remedy technical connecting problems and to more equally divide the programming
among its six centers; and (6) no moratorium coverage was presented because it
was adequately covered by the networks.
A short letter of reply from the Faculty Senate stated that it was not
accusing the AETC of censorship but preferred the original policy of program
selection and scheduling.
The AETC further
submitted a comment to another programming complaint. In this letter the licensee listed 257 programs which were
carried for a total 217 hours during a 30 week period from September, 1969 to
April, 1970 which "... either were integrated or involve a Negro complement
entirely." 155 of those hours were the program "Sesame Street,"
half of which were repeated programs, i.e., morning and afternoon.
The Commission
has reviewed the overall operations of the eight Alabama educational stations
and the allegations raised by the complainants to determine if the public
interest would be served by a grant of the applications. With respect to the issues of program
selection and control, the Commission, barring certain exceptions, is not
concerned with matters essentially of licensee taste or judgment. cf.
Palmetto Broadcasting Co., 33 FCC 250, 257 (1962). The licensee
necessarily and properly has wide discretion in choosing the programming to
meet the needs and interests of the community.
The Commission regards the maintenance of control over programming as a
most fundamental obligation of the licensee.
Here we are dealing with a few programs which in the licensee's opinion
contain certain offensive material.
In view of the
foregoing, there is no substantial problem warranting further inquiry, and the Commission
has directed that the applications for renewal of license filed by the AETC be
granted.
Commissioners
Cox, Johnson and H. Rex Lee dissenting and issuing
the attached statements.
BY DIRECTION OF THE COMMISSION, BEN F. WAPLE,
Secretary.
DISSENTBY: COX; JOHNSON; LEE
DISSENT:
DISSENTING
STATEMENT OF COMMISSIONER KENNETH A. COX
I dissent to the
grant of the renewal applications for the eight educational television stations
licensed to the Alabama Educational Television Commission. We have received serious complaints about
the licensee's discharge of its obligations, and I do not think we should act
on the applications without further inquiry.
Prior to July 1,
1969, the programming of these eight stations consisted of programs originated
by six programming centers in Alabama, supplemented by national programming
originated and distributed by National Educational Television. The University of Alabama programming center
was in charge of the NET affiliation.
Under its administration the eight stations carried, among other NET
programs, the series "Black Journal," "On Being Black," and
"Soul," as well as [*344] certain Vietnam moratorium coverage. However, since July 1, 1969, all final
decisions as to programming are made by the AETC. It has apparently refused to clear for any of the NET programming
listed above, and we have received a substantial number of complaints because
of this.
The Commission
referred these complaints to AETC for its comments. In its reply, it explained the change in policy as follows (I
have appended my comments):
(1) AETC's six
programming centers are given scheduling priority over available NET
programs. Comment: i have long
emphasized the importance of locally originated television programming and am
glad that the Alabama educational network is able to generate substantial
amounts of its own programming. But a
balanced service also requires programming designed for the entire country,
which usually involved higher production budgets because of this greater
exposure. Moreover, this response does
not explain the elimination of all, or nearly all, of the NET programming
featuring Negroes or dealing with their problems. Presumably AETC is still clearing for some NET programs despite its
greater emphasis on local productions.
Why does it not include in the national programming it still carries
some of the series dealing with racial matters, since Alabama has a substantial
black population and certainly shares the problems in this area which are dealt
with in these programs.
(2) "NET
programs containing lewd, vulgar, obscene, profane or repulsive material have
no place in the crowded AETC schedule." Comment: This supporting data for
the conclusionary statement are completely inadequate. AETC's general manager, Mr. Hurlbert, lists
five single programs, indicating that in his opinion they contained offensive
language or situations -- one each for the series "The Show,"
"Black Journal," "hospital," "Soul," and
"NET Journal." In the first place, there is no reference to "On
Being Black," one of the series deleted by AETC. Secondly, it is impossible to form any valid impression about the
matter he objects to without knowing its context. Mr. Hurlbert is offended by the use, twice, of a four letter word
in a poem opposed to the use of drugs and complains of the presentation of
situations he finds unpleasant though they are clearly facts of our modern life
with which we must cope. But most
important, he has found fault in each case with only one program but has
deleted the entire series. It is hard
to believe that my colleagues are willing to accept the claim that isolated use
of this language in a few episodes justifies cutting the public in Alabama off
from widely praised series which have been, and still are, carried by most
other educational television stations.
It is true that a licensee is responsible for all he broadcasts and can
therefore censor any matter offered for his use except the statements of
candidates for public office. But he
must exercise this power responsibly and cannot exclude ideas with which he
disagrees or all factual or fictional situations which offend him. It may be that Mr. Hurlbert thinks he is
performing a great service to the public by impossing his very restrictive
programming, but I doubt that the public really benefits -- and a good many
have complained to us.
[*345]
(3) NET affiliate contract requires a NET program be run in full,
consequently the AETC cannot delete portions of program material which it may
deem offensive. Comment: Assuming the
validity of his efforts, he could refuse to clear for particular episodes while
continuing to carry those programs in the series which contain to offensive
material.
(4) AETC took
over NET affiliation to remedy technical problems and to divide the programming
more equally among the six centers.
Comment: There is no indication of the nature of the alleged technical
problems, and no demonstration that the change has balanced the time allotted
to the six centers. This may be a valid
point, but we have no basis for evaluating it.
(5) AETC has
encouraged black participation in local productions. In an additional filing to respond to a later complaint, Mr.
Hurlbert listed 257 programs (for a total of 217 hours of broadcast time)
presented between September 1, 1969, and March 27, 1970, which were either
integrated or involved only Negroes.
Comment: That list includes 155 hours of "Sesame Street,"
which is not local. The remaining 62
hours includes programs in which Negro performers are presented, a Negro
teacher is used, or Negroes are somehow "involved" or for which the
audience was integrated. While I
applaud this use of Negroes in local programming, I do not think this in any
way replaces the national programming which has been deleted, which is
presumably of higher quality because of the greater resources available for its
production. While these local programs
serve to get blacks on the television screen, it is not clear that any of them
provide a forum for the expression of the opinions of Negroes or the discussion
of their problems. It may be these very
features of the displaced national programming which make it offensive to Mr.
Hurlbert.
(6) No Vietnam
Moratorium coverage was presented because it was felt that it had been
adequately covered by the networks.
Comment: I take it that this refers to the three national television
networks. It appears likely that the
Alabama educational stations cover some areas which do not receive full
three-network service and therefore have special need for the supplemental
educational service. But even in
markets with three network services, the sometimes quite different approach of
non-commercial television is of value.
Apparently the complainants felt deeply about the loss of NET coverage
despite the availability of commercial service.
I think this
indicates that AETC's response falls far short of really answering the
complaints, and that in some parts it gives rise to further questions. I did not propose that we designate these
renewals for hearing, but did feel that we should push our investigation
farther. Alabama is a southern state,
which, in my judgment, needs the insights of national as well as local
programmers on the problems of the Negro -- as we all do. It appears that a majority of the members of
AETC have been appointed by Governor George C. Wallace or his wife during their
respective terms in office. The sudden
elimination of all, or nearly all, of the NET programs dealing with Negroes
certainly seems unusual, and the explanations offered are not totally
convincing. The one paragraph in the
majority's letter which disposes of
[*346] the matter consists of
vague generalities which may generally be sound, but which do not come to grips
with the issue here. I believe my
colleagues have simply glossed over the whole matter. I feel strongly that we should have investigated further before
acting on the renewal application.
PRELIMINARY
DISSENTING OPINION OF COMMISSIONER NICHOLAS JOHNSON
This may not
seem like much, but it makes a difference.
-- CAMUS, Between Yes and No.
The Alabama
Educational Television Commission, under the guise of cleaning the airwaves of
"obscenity," has succeeded today in getting this Commission's imprimatur
of approval for the AETC's blotting out of a substantial portion of NET's
black-oriented programming over Alabama's eight-station educational
network. I dissent.
The complaint
file in this matter clearly discloses the extent to which the facts are
genuinely confused. This is, in other
words, precisely the kind of instance in which the Commission should attempt to
find out what's going on before it disposes of this serious matter. How we can justify our failure to at least
hold a hearing is beyond me.
The complainants
seek an explanation for the loss over Alabama's airwaves of several
nationally-known black program series -- "Black Journal," "On
Being Black," "Soul," and the critically acclaimed "Denver
Black Panther Trial."
Among many
points and questions that could be raised, two seem especially important:
1. Why couldn't the Alabama stations just
pre-empt objectionable shows rather than blotting out a whole series of
programs? We today allow Alabama’s network to burn down the barn to trap a lone
rat that I am not sure is even there.
2. The complaints also raise a very serious
question of whether Alabama ETV can now be adequately serving the black
community. From what few facts are
available, it appears that for the past year Alabama ETV has presented
integrated programming less than 10 percent of the time.
Is this adequate
for a state whose population is 30 percent black? I think not.
We have traveled
this wearisome road before. This
Commission once before renewed the license of a southern station accused of
racial discrimination in programming.
We were reversed. United Church
of Christ v. F.C.C., 16 P. & F Radio Reg. 2d 2095 (No. 19,409, D.C. Cir.
June 20, 1969).
We need to heed
the warnings of the Kerner Commission:
The absence of
Negro faces and activities from the media has an effect on white audiences as
well as black. If what the white
American reads in his newspapers or sees on television conditions his
expectation of what is ordinary and normal in the larger society, he will
neither understand nor accept the black American. By failing to portray the Negro as a matter of routine and in the
context of the total society, the news media have, we believe, contributed to
the black-white schism in this country.
[*347] Report of the National Advisory Commission
on Civil Disorders 383 (Bantam Book Ed. 1968).
We cannot know
what a full investigation or hearing might disclose. I do not pass judgment on the facts at this time. I am appalled, however, at my colleagues
refusal to even find out what those facts may be in a case in which we have so
many distinguished complainants making such serious charges.
Camus once
described an incident of racial discrimination, brushed over by society, by
saying, "This may not seem like much, but it makes a difference." The
majority today brushes aside what may be much more. In any event, the appearance as well as the reality of this
Commission's concern does make a difference.
I may wish to
issue a more thorough analysis of this case in the future. For now, however, this must suffice as an
expression of concern that the FCC's undistinguished record in the area of race
relations has not been improved by today's action.
DISSENTING STATEMENT OF COMMISSIONER
H. REX LEE
I dissent to the
majority's action of granting the renewals of the eight Alabama educational
television stations without first obtaining additional information from the
licensee concerning its programming policies.
On the basis of
the information before us, I did not feel that the renewal applications should
have been designated for hearing; however, sufficient questions had been raised
to justify further inquiry.